KEITH CRAWFORD, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6832
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-2) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 29,
1989. The petition for a writ of certiorari was filed on March 1,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the district court erred by not advising petitioner that he
had a constitutional right to testify.
STATEMENT
Following a jury trial in the United States District Court for the
District of Colorado, petitioner was convicted of distribution of
cocaine, in violation of 21 U.S.C. 841(a)(1); conspiracy to
distribute cocaine, in violation of 21 U.S.C. 846; and possession
with intent to distribute cocaine, in violation of 21 U.S.C.
841(a)(1). /1/ Petitioner was sentenced to seven and one-half years'
imprisonment, and he was fined $100,000.
1. The evidence at trial showed that petitioner sold cocaine on two
occasions to undercover DEA Agent David Montoya. Phillip Marlowe, a
government informant, arranged the initial meeting at his apartment
between petitioner and Montoya on November 20, 1987. During a
tape-recorded conversation, Montoya told petitioner that he was
interested in purchasing $85,000 to $100,000 worth of cocaine. I Tr.
3-10, 41-42, 44-48. Four days later, Montoya and petitioner met a
second time at Marlowe's apartment. During the course of another
tape-recorded conversation, petitioner delivered 27 grams of cocaine
to Montoya in exchange for $1700. I Tr. 10-16, 48-51, 82-85; II Tr.
115; Gov't Ex. 3-5.
On December 4, 1987, petitioner and Montoya met again at Marlowe's
apartment where they discussed a second cocaine transaction. I Tr.
17-18, 51; Gov't Exs. 6-9. Four days later, Montoya telephoned
petitioner's girlfriend, Leanna Kirkwood, from Marlowe's apartment.
During that tape-recorded telephone conversation, Montoya negotiated
the purchase of one pound of cocaine. I Tr. 19-23, 61-66; Gov't Exs.
10 & 11. The next day, Kirkwood drove petitioner to Marlowe's
apartment where he met with Montoya and Marlowe. Following a
tape-recorded conversation in the apartment, petitioner and Marlowe
went out to the parking lot. When Marlowe returned, he told Montoya
that petitioner had the "stuff" and was waiting in the parking lot.
Montoya met petitioner in the parking lot, and they walked to
Montoya's car. Montoya removed a shaving bag containing $35,000 in
currency from the car's trunk. When surveillance agents arrived to
arrest petitioner, he dropped a shopping bag containing approximately
one pound of cocaine into the trunk of Montoya's car. I Tr. 23-29;
II Tr. 115-116; Gov't Exs. 12-14.
Shortly after petitioner's arrest, local police officers located
Kirkwood at a nearby restaurant, and she consented to a search of her
car. In the trunk of the car, the officers found a scale with cocaine
residue on its top. The officers also found an empty bottle of the
drug-cutting agent inositol, a steak knife, and a kitchen strainer.
Kirkwood was then arrested. I Tr. 88-93, 94-97; Gov't Exs. 16-18.
When petitioner was interviewed after his arrest, he told the
agents that Kirkwood had brought the pound of cocaine to his house and
that she had obtained the cocaine from her source -- a man named
"Ray." I Tr. 31-32. He also told the agents that he had four more
ounces of cocaine at his house. I Tr. 32. After obtaining a search
warrant, the officers found approximately three ounces of cocaine and
a cocaine sifter in petitioner's bedroom. II Tr. 101-107, 116; Gov't
Exs. 20-21.
2. Petitioner's defense at trial was that he was acting as a
government informant for the Boulder City Police Department when he
sold cocaine to Agent Montoya. As part of its case-in-chief, the
government called Mary Manka, a Boulder City police detective, and
David Rockwell, a deputy district attorney. They testified about a
written agreement to dismiss a state shoplifting charge if petitioner
arranged at least two undercover drug purchases from Paul Streeter and
J.J. Hunera by December 1, 1987. II Tr. 121-127, 149-158; Gov't Exs.
22, 22A. When petitioner failed to cooperate, he was arrested on
December 7, 1987. While in custody, however, petitioner arranged a
sale of one pound of cocaine from Paul Streeter to an undercover
Boulder City police officer. That action led to petitioner's release
and a later dismissal of the shoplifting charge. II Tr. 127-138,
158-166. Rockwell and Manka testified that petitioner was not working
for them as a government informant in connection with the two cocaine
sales to Agent Montoya. II Tr. 131-133, 138-139, 188.
After the government's case-in-chief, the district court denied a
motion for acquittal. The defense then called as a witness Michael
Rennich, the attorney who represented petitioner in connection with
his cooperation agreement with the Boulder City Police Department. II
Tr. 190-207. When Rennich finished testifying about the agreement,
the court took a 15-minute recess to wait for the next defense
witness. At that time, defense counsel told the court that he did not
anticipate that he would call any other witnesses. II Tr. 207.
Following the recess, however, Todd Demers testified as a defense
witness that petitioner had tested negative for drug use between
January and December 1987 while petitioner was on probation. II Tr.
208-211.
At a bench conference following Demers' testimony, defense counsel
asked for "a moment to confer with my client" because counsel was "of
the opinion that we should rest right now." II Tr. 211. The court
stated that it would send the jury home and review the jury
instructions with counsel if the defense rested. The court noted,
however, that "if (petitioner) wants to testify, just go right ahead
and call him, and then we will (review the jury charge later)." II Tr.
211-212. After defense counsel conferred with petitioner, the defense
rested. II Tr. 212.
3. The court of appeals affirmed. Pet. App. 1-2. It rejected
petitioner's contention that the district court had erred by failing
to advise him of his right to testify and by failing to obtain his
personal waiver of that right. The court held (Pet. App. 2):
The trial court under the circumstances of this case did not
have an affirmative duty to specifically inform (petitioner) of
his right to testify. The record is clear that defense counsel
was given an opportunity to confer with (petitioner) during the
trial. There was no indication at trial that (petitioner)
wished to testify. The law of this circuit is that there is no
constitutional or statutory mandate that the trial court inquire
into a defendant's decision not to testify under these
circumstances. See United States v. Janoe, 720 F.2d 1156, 1161
(10th Cir. 1983), cert. denied, 465 U.S. 1036 (1984). The
decision not to testify remains one to be made between the
attorney and his or her client. Thus, the district court did
not err in failing to inquire into (petitioner's) decision not
to testify and failing to elicit an explicit waiver of the right
to testify. ARGUMENT
Petitioner argues (Pet. 11-23) that the district court was required
to advise him of his constitutional right to testify and to determine
whether his waiver of that right was a knowing and voluntary one. The
decision of the court of appeals is correct, and it does not conflict
with the decision of any other court of appeals. Thus no further
review is warranted. /2/
Contrary to petitioner's contention (Pet. 16-23), the courts of
appeals have uniformly held that a district court: (1) has no
obligation to advise a defendant who is represented by counsel that he
has a right to testify, and (2) has no duty to question whether the
defendant's waiver of his right to testify is a knowing or voluntary
one. See United States v. Martinez, 883 F.2d 750, 755-761 (9th Cir.
1989); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied,
109 S. Ct. 110 (1988); Siciliano v. Vose, 834 F.2d 29, 30-31 (1st
Cir. 1987); United States v. Bernloehr, 833 F.2d 749, 751-752 (8th
Cir. 1987); United States v. Janoe, 720 F.2d 1156, 1161 n.9 (10th
Cir. 1983), cert. denied, 465 U.S. 1036 (1984). Rather, it is "(t)he
accused (who) must act affirmatively" to express his desire to
testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375
(1st Cir.), cert. denied, 474 U.S. 847 (1985). /3/
The courts of appeals have correctly concluded that a defendant
bears the burden of affirmatively exercising his right to testify.
The decision whether to testify is, in large part, a matter of trial
strategy. It is a subject that is traditionally discussed by counsel
and his client without intervention from the district court. For that
reaosn, it is primarily the responsibility of defense counsel -- and
not the district court -- to advise a defendant on whether to testify.
A defendant's right to testify is therefore analogous to his right to
cross-examine witnesses and his right to call witnesses in his
defense, which are waived by a defendant's failure to assert them.
See United States v. Martinez, 883 F.2d at 757-759.
Indeed, to require the district court to ask about a defendant's
failure to testify could create a risk of improper intrusion into the
attorney-client relationship and interference with defense strategy.
See United States v. Martinez, 883 F.2d at 760; United States v.
Bernloehr, 833 F.2d at 752 n.3. By advising a defendant of his right
to testify, the district court "could inappropriately influence the
defendant to waive his constitutional right not to testify, thus
threatening the exercise of this other, converse, constitutionally
explicit and more fragile right." Siciliano v. Vose, 834 F.2d at 30;
see also United States v. Martinez, 883 F.2d at 760. Accordingly, the
courts of appeals have properly held that a district court has no duty
to advise a defendant of his right to testify or to inquire into his
decision not to testify in the absence of some expression by the
defendant of a wish to testify. /4/
In any event, the district court in this case informed petitioner
of his opportunity to testify. After the defense had called its last
witness, the Court told petitioner's attorney on the record: "(I)f
(petitioner) wants to testify just go right ahead and call him." After
petitioner's lawyer conferred with petitioner, the defense rested.
Petitioner therefore waived his right to testify.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
JOSEPH C. WYDERKO
Attorney
MAY 1990
/1/ Petitioner was acquitted on one other count charging him with
possession of cocaine with intent to distribute it.
/2/ Petitioner also suggests (Pet. 9-11) that further review is
necessary to decide whether a criminal defendant has a constitutional
right to testify in his own defense at trial. The existence of such a
right, however, is well settled. See Rock v. Arkansas, 483 U.S. 44,
49-53 (1987); Farretta v. California, 422 U.S. 806, 819 n.15 (1975);
Brooks v. Tennessee, 406 U.S. 605, 612 (1972). Accordingly, there is
no need for further review of that matter.
/3/ Petitioner's reliance (Pet. 15, 20-21) on Ortega v. O'Leary,
supra, is misplaced. In Ortega, the Seventh Circuit pointed out that
trial courts "have no affirmative duty to determine whether a
defendant's silence is the result of a knowing and voluntary decision
not to testify." 843 F.2d at 261. However, in that case, the
defendant made the trial court aware of his desire to testify. Under
those circumstances, the Seventh Circuit concluded that the trial
court should have made an inquiry. Id. at 260, 263. Ortega thus
simply illustrates the difference between a silent defendant and one
who invokes his right to testify.
/4/ We note that, earlier this Term, the Court denied a petition
for review in another case raising this same issue. See United States
v. Evans, 874 F.2d 817 (9th Cir. 1989) (Table), cert. denied, 110 S.
Ct. 365 (1989).